The Supreme Court’s judgment in Namit Sharma v Union of India with respect to the composition of Information Commissions across the country is remarkable, and most unfortunate. In essence it says this: only retired judges can ensure the fair and efficacious administration of justice under the RTI Act. If this assumption were not problematic enough, the Court then effectively appropriates the powers of the legislature and the executive by telling them exactly what they must do. The primary issue before the Court was the constitutionality of the eligibility criteria for Information Commissioners. Currently, Section 12(5) of the RTI Act states that ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’ are eligible to be Information Commissioners. The Court found this provision to be vague – yet not discriminatory and, importantly, not suffering from any constitutional infirmity. But nevertheless, and strangely, the Court proceeds to rule on how the provision must be read to ensure its constitutionality. While construing the statutory provision, the Court gives several directions in the judgment. Perhaps the two most significant directions are: first, since Information Commissions possess the essential attributes of a court, and their functions are more judicial than administrative in nature, persons with qualification, experience and knowledge in law should be appointed to the Commissions. As judicial members, they would be able to perform the adjudicatory tasks better. Second, only former or current Supreme Court judges and Chief Justices of High Courts should be appointed Chief Information Commissioners.

This construction of Section 12(5) of the RTI Act is nothing more than a re-writing of the statutory provision. Addition and substitution of words in statutes by Courts is contrary to well-accepted principles of statutory interpretation.  This is legally impermissible, more so since the Court finds no constitutional infirmity to begin with. The Court’s detailed directions on the procedure for appointment of judicial and non-judicial members, the criteria for eligibility, and who can be appointed as a Chief Information Commissioner falls squarely within the domain of Parliament. The judgment violates the core constitutional principle of the separation of powers. Statutes establishing tribunals specifically lay down the qualifications of the Chairman and different categories of members. There are no such provisions in the RTI Act which demonstrates that Parliament did not intend to draw such bright lines. Parliament also did not provide for any special eligibility criterion for the Chief Information Commissioner, perhaps since his adjudicatory powers and functions are precisely the same as the other Commissioners. Even the selection procedure is the same. For the Central Information Commissioners, a committee of the Prime Minister, Leader of the Opposition and a Cabinet Minister make recommendations to the President. Consultation with the Chief Justice of India before appointing one class of Commissioners, i.e. the judicial members, is an additional requirement that the Court has incorporated into the existing provision. 

The Court does not stop there, and intrudes even further into the domain of the policy-maker. The direction that the Commission should sit in benches consisting of one judicial and one non-judicial member is a decision about the day-to-day functioning of the Commissions. Such a policy decision ought typically to be taken by the appropriate government, under Sections 27 or 28, after due consideration of various factors including necessity, the pendency of cases and a more general cost-benefit analysis. The directions pertaining to the appointment of judicial members are legally problematic – the Court’s reasoning for mandatorily requiring judicial members is not above reproach. Part of the reasoning appears to flow from earlier decisions of the Court with respect to the constitutional requirements for the proper constitution of Administrative Tribunals. However, an analogy with those cases may be inapposite. Those tribunals were constituted to hear cases which were earlier heard by High Courts. To ensure that the alternative institutional mechanism was no less efficacious, tribunal members were expected to afford the same judicial treatment to the cases as the High Courts would otherwise have. But in the case of Information Commissions, their adjudicatory role was never previously performed by any Court as the statutory rights under the RTI Act are novel. 

The Court’s concerns about the importance of the Information Commission’s functions are not misplaced. The Commissioners are occasionally confronted with complex legal issues, and Commissioners without a legal background may require some assistance initially in appreciating how to conduct a quasi-judicial proceeding, and how to deliver a reasoned decision. But that is hardly an insurmountable problem, nor does it require the drastic overhauling of the RTI Act that the Court seems to deem necessary. The Information Commissioners can be assisted by a well-trained in-house Legal Department. Furthermore, if the Government finds it necessary, it may propose the appointment of one or two Information Commissioners with a legal/judicial background. As long as the principles of natural justice are observed by the Commissioners, and they perform their functions conscientiously keeping in mind the overarching mandate of the Act, the public has little reason to lose faith in the RTI regime. Unfortunately, the Apex Court has decided otherwise.